Summary is a personally edited and modified version of Michael Mostyns Summary

Chapter 1 - Introduction to the Law of Torts

Torts - a type of civil wrong, separate from breach of contract which the courts will redress by way of monetary
damages
TORT - "civil wrong"
other than breach of contract
which courts address by award of damages (usually monetary)
state plays no official role
e.g.) sue tobacco for cancer but tie up your $
sue for DWI hit/run but guy has no $, THEREFORE Judgement (when has $)
TORT
Civil offence between 2 people
provide compensation
prove on balance of probabilities
private wrong

CRIMINAL
individual vs. state
to deter criminal offenses
beyond "reasonable doubt"
public wrong

TORT
deals with property tangentially
(interference with possession)

PROPERTY
deals with ownership and
possession

TORT
remedies are available
independent of agreement

CONTRACT
rights and remedies made by
parties by mutual agreement

NONFEASANCE failure to act - e.g. see blind person walk into traffic
(more difficult to enforce in torts b/c emphasis on autonomy)
MISFEASANCE positive wrongful act - eg. push person into traffic
2 Torts of Writ System:
1) VI ET ARMIS - INTENTIONAL - if log thrown & hit someone in head
i) quasi-criminal (in nature)
ii) directly cause injury
iii) actionable without proof of harm
iv) no need to prove fault
v) once interference established (touch someone), burden of proof on D
vi) punitive damages - monetary to punish tort-e.g.) cut down tree
2) TRESPASS ON THE CASE - UNINTENTIONAL (NEGLIGENCE) - if someone fell on a log and hit their head
i) quasi-contractual in nature
ii) indirectly caused in jury
iii) proof of harm
iv) need to prove fault
v) burden of proof on P
vi) no punitive damages
Cases:
Scott v. Shepherd - D threw lighted squib and thrown by others. D liable b/c "he who does 1st wrong answers for all
consequences"
(dis)- only if immediate.
Leame v. Bray - D caused horse injury b/c negl. -Immediate injury from immediate act of force. THEREFORE
=trespass

Holmes v. Mather - runaway horses. driver free of blame b/c tried to steer horses away. THEREFORE = not
wrongful act, no action maintainable.
Cook v. Lewis - 2 hunters mistakenly shoot P. Where P injured by direct force, case is made by onus on D to prove
that trespass was without fault.
4 categories of torts:
1) intentional
2) negligence
3) strict liability
4) residual group of actions - defamation, nuisance etc.

LIABILITY IN TORTS
Absolute ------ Strict ----- Negligence ----------Intent. Torts
Liability
Special Rules Imputed &Transferred
of Proof Intent
absolute - D liable if his conduct causes P's loss (issue causation not fault)
strict - liability without intent or negligence. must prove causation. other preconditions e.g.) defective product from
mfg. must show it was this way when it left mfg. (opposite of absolute)
vicarious liability - D acted while employed. must prove m/s rel't.
Negligence - failure to take reasonable care to prevent foreseeable harm to others. (based on fault)
Intentional - based on fault. intent to bring a/b consequences.
WHEN ANSWERING QUESTIONS:
1ST P:
1) TORT
2) PARTIES
3) CONDUCT
2ND P:
1) ACT WAS:
i) VOLUNTARY - CONSCIOUS MIND
ii) INTENTIONAL

Chapter 2 - The Basic Concept of Remedies in Intentional Tort

Order of Analysis:
1) Lead Sentence; identify parties and P. must show that a tort was committed.
2) next paragraph - list remedies available
3) next paragraph - Defences available for the tort (i.e. self-defense)
4) next paragraph - Damages only after P. has shown D. did Tort with no defence
LIABILITY
CAUSATION - we require some connection between the parties
NECESSARY CAUSATION - but for what D did, Ps injuries would not have occurred
SUFFICIENT CAUSATION - Ds conduct all by itself was the only cause: it was sufficient to bring about the harm
you only need necessary causation
recall that not all torts require fault!!
punishment looks backwards; proportion to the wrong
deterrence is preventive
Judicial Remedies:

1) Damages (99% of time)- grants plaintiff a legal entitlement to a specific sum of money that may have to be
enforced with creditor remedies (e.g. you don't get the money instantly).only of value if defendant has assets
2) Injunction - court order directing to do something (mandatory) or not do something (prohibitory).only issued if damages will not suffice.discretionary whether offered by court (usually rare in torts).
3) Declaration- equitable resolution by court settling a debated issue.
4) Specific Restitution - equitable remedy to restore the objector condition; directs a party to restore a pre-existing
condition or return an object.
Extrajudicial Remedies:
- self help, broad range - eg. abatement of nuisance, recapture of chattels, private necessity, ejectment

Classification of Damages by Function:

1) Nature of the Harm:
(a)Pecuniary: has a monetary equivalent to the loss (Special and General damages) eg. Lost earnings, medical bills,
repairs
(b)Non-Pecuniary: can't be calculated in monetary terms (eg. pain and suffering, humiliation, disfigurement)
(General damages only).
arbitrary awards, limited to $100,000 in Canada(subject to inflation from 1978 dollars)
2) For Purposes of Pleadings:
(a)Special Damages: damages capable of exact calculation at time of trial (must be specifically pleaded and proven
by P. at trial)
(b)General Damages: incapable of exact calculation at trial - all non-pecuniary losses are General (eg. future loss
of income).
3) Purpose of the Damage Award:

(a)Nominal Damages:

awarded to vindicate a legal right in the absence of actual harm, loss, or injury. (eg. trespass with no harm done)
doesnt mean a small amount of money awarded
it is only available per se; do not need to show damages/proof of loss
society decides that some actions are wrong independent of whether harm in suffered

The Mediana 1900 HL

someone takes a chair out of my room and keeps it for a year
I have other chairs
I can receive NOMINAL DAMAGES
I have lost enjoyment: the use of he chair for 12 months
no specific amount of $ lost
just the infraction of a legal right

(b)Compensatory Damages:

compensates P. with financial redress for an actual loss suffered, including non-physical
purpose is to put P. where he would be if the tort had not been committed.
Both special and general; pecuniary and non-pecuniary
The more serious the injury, the more difficult to figure out the award (highly speculative focus on Loss of the Plaintiff

Aggravated damages is to injuries for pride and dignity stemming from the where the defendant's behaviour
was malicioous, vicious, high handed, or socially unacceptable & warranted punishment and deterrence. also limited to socially (objectively)unacceptable behavior Focus is on the Plaintiff to prove in Aggravated Damages
1) unpleasant behavior; and
2) actual loss (injury to dignity and pride)
- because of compensatory nature.

(c) Punitive Damages:

purpose is to punish and deter the defendant for socially unacceptable behavior (objective).
Focus on behavior of the Defendant, don't look at P.
Test: exceptional actions (harsh, malicious, flagrant, deliberate)
Retribution
P must be the victim of the action

Distinguish from:
AGGRAVATED
deals with conduct AND consequences
injury to pride and proper feelings
the same test: exceptional actions
there seems to be no real difference between punitive and aggravated damages in Canada
but look to consequences for aggravated
Vorvis v. Insurance Corp. of B.C. 1989 SCCcourt distinguished between aggravated and punitive damages as separate.
wrongful dismissal here - aggravated damages can't be applied in these types of cases (labour relation cases)mental distress was not objectively forseeable for termination of contract.
can get punitive damages even if D is convicted and sentenced, provided he is not incarcerated.
* Punitive Damages available in 3 categories in England
1- arbitrary outrageous acts by the government
2- when defendant calculates a profit in excess to compensatory damages
i.e. Cadillac Fairview rips up neighbors $4.00 tulips to increase property value by 4 million damages.
3- when specified by statute
*In Canada - punitive damages can be awarded in any case.
B.(P.) v. B.(W.) 1992 Gen.Div.
P had been repeatedly sexually assaulted by father for 13 years
severely traumatized
awarded non-pecuniary damages
aggravated damages for gross breach of trust
punitive damages b/c father was not punished criminally
could not get punitive damages for what he was already criminally convicted
but he was not convicted on all the charges -can get punitive damages punitive for those (eg. the rape). *
defendant's criminal conviction has nothing to do with aggravated damages - still apply
mere fact I got money from you in tort won't apply to crim. law- harder to prove, but it can work the other way.
now, courts may award punitive damages if they think the punishment of the criminal court was not tough
enough

*K.C. Hill got 1.3 million for defamation by Church of Scientologyhow does that compare to B. v. P. getting $175,ooo?-

social justice is not the law.

Punitive damages are not usually available in negligence - careless conduct except for extraordinary
circumstances.
you are only entitled to remedies the judge deems appropriate, but you do have a right to compensatory
damages.
can get both punitive and aggravated damages.
courts will take totality of award into account (if one very big, the other may be small)

First Question In Damages: Is there a loss damage or injury?

No - Nominal
Yes Second Question: was the defendants conduct sufficiently outrageous and has P. also suffered injury to pride?
Yes - may get Aggravated damages
If D.'s conduct warrants punishment and deterrence, may get punitive.

Chapter 3 - Intentional Interference with the PersonDerived from trespass vi et arms: - battery, assault, tresspass to land and chattels.
Derived from trespass on the case: - false imprisonment., malicious prosecution, intentional infliction of nervous
shock.D
Does the defendant's act give rise to the tort?
I - Principles of Liability: only liable if conduct is both: (a) voluntary (product of a conscious mind)
(b) intentional
1) Volitionthe act must be voluntary and directed by a conscious mind & in control of his physical actions.
Smith v. Stone 1647 K.B.act was his body going onto the land of the defendant (he was carried there).
his act was not voluntary therefore not guilty of a tort.
the party who carried D. committed the tort.
eg. tripped and put out hands - not voluntary
eg. chased by bees, save a kid - voluntary
2) Intent
D. must intend the consequences of the act giving rise to the tort action.
motive is irrelevant to volition and intent.
does not deal with moral blameworthiness
just because the act is voluntary with intent does not mean you will be held liable i.e. pushing a little girl out of
the way of a car- has intent and volition.
(A) Actual Intent
You actually desired to bring about the consequences giving rise to the action
(B) Imputed (Constructive) Intent: unintended consequences that are certain or substantially certain to result.
intent will be imputed if D. intended his act
- eg. place bomb, hoping not to hurt anyone.
- based on an objective reasonable test
this is not simply foreseeable or probable; rather, it is a very high test
(C) Transferred Intent:

D. may be held liable when has intent against one party and mistakenly acts against anotherthe law transfers the wrongful intent to the person who actually gets injured or killed.not certain or substantially certain to follow. This can be the same tort or a different tort.
limited to hurling, casting and shooting - direct consequences of the act. transfers from one victim to another and from one tort to another
can't transfer other acts not from trespass vi et armis (eg. intentional infliction of nervous shock)

II - Related Issues: Motive, Mistake, Accident

(1) Motive:
reasons for wanting the result to occur
P does NOT have to establish that D had a blameworthy motive, just that the conduct was intentional
not relevant to intentional tort liability - does not deal with intent it is not an element of the tort
not a defence per se (may be element of a defence)
Relevance:
1) Tort - motive not relevant to whether the tort occurred.
2) Defence - motive relevant to self defence and defence of third parties.
3) Damage - if motive good may affect compensatory - low sumif motive blameworthy - may get aggravated damagesfor punishment and deterrence (punitive)- motive may be relevant
2 Important Motives:
(I) Duress
includes any conduct which overpowers will and coerces or constrains performance of an act which otherwise
would not have been performed
a motive that does not negate volition or intent (if you act to protect yourself, you still do so with a conscious
mind and intent).
may negate the defence of consent
function of tort is compensation of P. not punishment of D.(like crim.).
* not a defence at common law, may affect damages.
Gilbert v. Stone 1648 K.B.
- G sues S for going into house & taking $
- S pleads duress ( life threatened at gunpoint by 12 gangsters)
- duress not a defence (P. must be compensated because he has still committed the tort)
(II) Provocation:
Provocation Test - plaintiff's conduct must be such as to cause the defendant as a reasonable person to lose power of
self control immediately before or during the tort.
not a defence in tort, only affects damages
Miska v. Sivec 1959 Ont. C.A.guy chased into house by guy with iron bar & kills with a warning shot.
judge said he should have lost temper sooner (was calculated) no provocation: D made a successful retreat; no
evidence of sudden passion
doesnt affect volition or intent (doesnt negate liability, not a defence)
provocation involves losing self control of a reasonable person in a sudden uncontrolled passion.
loss of control must be reasonable as well as response being reasonable
past ill will does not constitute it, unless there is an immediate trigger.
In Ontario, provocation can mitigate punitive damages
(2) Mistake:
D. intends the consequence of the act but consequences have a different factual/legal significance than

contemplated.
not a defence - by definition does not affect intent.
Impact on other defences varies:
- mistake of fact to protect myself - OK
- mistake of fact on consent of another- not OK
Mistake of Law - believe you had a legal right but didn't
Mistake of Fact - think your shooting a moose but shooting a man.
sincere yet mistaken belief is no excuse but may mitigate liability.
Hodgkinson v. Martin 1928 Eng. C.A.D. removed P. from office, thinking he was legally justifiedtort committed because his act was voluntary and intentional he actually intended to remove this man from the
office. But damages were mitigated by mistake.
Ranson v. Kittner 1888 Ill. C.A.killed dog, thought a wolfmistake in fact - still liable for all damages despite good faith. He had intent to shoot that animal
(3) Accident
distinguished from mistake - no intent
unintentionally and without negligence injures P
cannot be held liable in intentional torts or negligence
(4) Liability of Children and Mentally Ill
held to same principles of liability as others (volition &intent)
Test - whether D. capable of "appreciating the nature and quality of his acts".
parents are not vicariously responsible for acts of kids/wards
parents only liable if negligent in controlling/supervising
eg. Tillander v. Gosselin 1967 C.A.
- court will read into a voluntary conscious act - say too young to understand and judge (here 3 years is too young).
*Criminal Code uses an arbitrary age: eg. under 12 not aware of law - not the law in tort, no fixed age.
Squitteiri v. De Santis 1976 H.C. defendant could not understand his act of stabbing is wrong -relevant to Criminal law not tort.D. not criminally responsible by insanityhe understood the nature and consequences of his act - liable in tort.

III - Battery:
the intentional bringing about of a physically harmful or socially offensive physical contact with the person of
another without consent
tort applies to anything riding in, carrying, or wearing (eg. to clothing attached to the person)
law protects rights to be left alone.
once P. proves the act burden shifts to D. to show no volition or intent.
any interference with another unless it is a socially accepted practice will be an interference eg. shaking hands
not kissing a nun.
Court will adopt an objective reasonable person test
Tort of battery is concerned with human dignity
needs to be a positive act - broadened definition in America and Canada, responsible for indirectly caused injury
whether forseeable or not.
Battery actionable without proof of loss or injury.
P. need not be conscious at the time it was committed.
Defences recognized: consent, self defence, Defence of Property, legal authority, defence of 3rd person
Bettel v. Yim 1978 Ont. Co. Ct.

Test 1) physical contact that is 2) intended and that is 3) direct(no intervening human act) gives rise to the tort.
tort here when storeowner touched P., before he broke his nose.
once commit a battery - liable for ALL direct or indirect results of that battery whether forseeable or not. I.e.
you are liable for everything that flows from your tortious act. Reasons if a more serious harm befalls P than
was originally intended by D, it is D and not the innocent P that must bear the responsibility for the unintended
act
once direct physical contact is shown, onus shifts to d. to prove no intent.
No need for forseeability
There was actual intent to grab the boy, so no question of intent either

IV - Assault - the intentional creation in the mind of another of a reasonable apprehension of imminent physical
contact (The apprehension of battery).
no fear of injury or death is required just apprehension of immediate physical contact (whether D. has actual
intent & ability or not)
standing still doesnt lead to physical assault, must be apprehension of a positive (direct) act.
intent is irrelevant (whether a joke or not)
future and conditional threats usually not an assault
objective test, reasonable person in the plaintiff's position
Contact excludes socially accepted practices
words alone may be enough if they cause the apprehension.
Holcombe v. Whitaker 1975 Ala. S.C.P and D divorcing. If you take me to court, I will kill you!
words alone don't = an assault; a threat with an act to cause a fear of battery = assault
a conditional threat constitutes an assault if it is combined with an overt show of force
In this case, she believed that he had the apparent immediate ability to carry out his threat.
* if he just gave a statement alone but you had reason to fear him for imminent danger, would probably have a
case (Solomon).
Issues
problems with immediacy and conditional threats if condition may be fulfilled later, and the threat is
premised upon the condition, can we really say there is an immediate apprehension of physical contact?
Police v. Greaves 1964 Eng. C.A.
D. says to officer: "one step closer, and I will stab you."guilty of assault because the officer had a legal pre- existing duty to arrest the guy.
threat with intention to batter and present ability to execute threat is an assault
it does not matter that you have an alternative (to leave), b/c the alternative might be pretty bad: Your $ or your
life! a threat by its very nature provides an alternative, but it is still actionable
also, it does not matter if there is an alternative if there is a present ability to carry out the threat
there was an immediate apprehension of contact he held the knife to him
2 Types of Conditional Threats:
1- if you are safe by doing nothing, then it is no assault, unless the other had a legal duty to intercede (eg. if you
move I will kill you).
2- if it is a conditional threat that requires you to take immediate action due to danger - assault. (eg. if you don't
move I will kill you)
courts are moving away from this, and expanding the definition of assault to both types of conditional threat,
unless the threat has no present intention (eg. future intention)
lay out the traditional definition, then cite the modern trend for a problem.

V - False Imprisonment:
the intentional bringing about of a total restraint of movement, which may be brought about by barriers or other
physical means, or explicit or implicit threats of force, or implicit or explicit assertion of legal authority .
need only be only temporary
the means by which the total restraint is imposed will lead to the different defences (i.e. by legal authority)
which D. must prove once P. has proved False imprisonment.
not necessary for P. to be touched
not just mere inconvenience
may be brought for wrongful initiation of charges in limited situations
D. not liable for giving cops info which they analyze.
D. liable if order another (or a cop) to falsely restrain -both are liableif sign says "right to look in bags" - blind and illiterate don't know, - sign does not imply consent.
if P. consented in advance to restraint (eg. in a plane to T.O. but stops in Hamilton) D. can raise defence of
consent - consent must not be exceeded.
SUBJECTIVE total restraint may be by perception and not actual
Bird v. Jones 1845 QBP travelling on highway, encountered police barricade. Prevented from travelling on that section of higway but
could use other route.
Ratio:
there must be a total restraint of movement - blocking someones path is not false imprisonment, if they are free
to move in other directions without undue risk Campbell v. S.S. Kresge 1976
Campell v. Kresge Co (1976)
P. asked by D.'s agent (off-duty cop) to return to store.D. used his position to create a total restraint of P. by an implicit threat (showing badge). She complied out of fear
and to avoid embarrassment.
have to make it clear she is free to go or else there is false imprisonment. D was forced to go where she did not
want to go.
no physical barrier required for action to succeed.
store is vicariously liable if tort arises in course of employment. This gives employers an incentive to control
their employees.
Test for vicarious liability: did the situation arise because of that job or position?
also, you have a right to remain with your personal belongings if your goods are seized; this may give rise to a
false imprisonment action
even if P goes willingly with D, staff can be held liable for false imprisonment if they subsequently detain him
Herd v. Weardale Steel 1915 H.L.P. goes into a mine, had to work to end of shift, wanted to come up early because he felt it was not safe, but not
allowed. Historic case where it is not false imprisonment to hold a man to conditions of his contract because of his
consent volenti non fit unjuria D consented to work in dangerous mine.
Problems
rights can be contracted away; there was total restraint, but the defence is consent now, destroy the consent:
he consented to work, but not to complete servitude despite danger; surely there are implied limits to what the
person agreed to
this case is about WORK CONDITIONS there should be safety regulations
workers should have the right to refuse dangerous work
P. would win in Canada today (also now covered by legislation eg. Occupational Health and Safety Act.

VI - Malicious Prosecution - the groundless initiation of criminal proceedings against the plaintiff that
terminate in the plaintiffs favour and are initiated out of malice or some other improper purpose.

1.
2.
3.
4.

proceedings initiated by D
terminated in favour of P
absence of reasonable and probable cause
malice, or primary purpose other than that of carrying the law into effect

derives from trespass on the case (indirect interference)

no actionable per se: there has to be an element of damage damages are an element of the tort
concerned with the indirect interference of a person

What does the Plaintiff have to prove?

reasonable and probable cause
an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds which
would reasonably lead the ordinary prudent and cautious person placed in the position of the accuser to the
conclusion that the person charged was probably guilty of that crime.

Groundlessness - absence of reasonable and probable grounds.

plaintiff must prove facts which will convince a prudent man.
the prosecutor must actually believe in the guilt (subjective belief), and that belief must be objectively
reasonable.
* does crown really need to believe? - unresolved.

Definition of terms
Initiation of Criminal Proceedings
In Canada, if I knowingly lie to police and police lay charges, that is enough.
it is enough to be the driving force of the prosecution.
merely providing information to police is not enough.
the wrongful continuation may lead to malicious prosecution too.
Criminal Proceedings - defined more broadly (eg. includes municipal by-law, if imprisonment in fault of payment,
affects P's trade or creates scandal ( Reid v. Webster 1966 PEI S.C.)
Terminate in Plaintiffs Favour - common practice for crown to overcharge, if you are guilty of the main offences the law was not made to defend these circumstances.
Malice - if you know you have no case but charge in order to induce the person to plead guilty or might need
something more, eg. no intention to proceed or rush to charge because of publicity.
initiation of charges is sufficient
burden of proof on the plaintiff
from trespass on the case - not actionable without proof of loss.
Nelles v. Ontario 1989 SCCcharged Nelles the nurse at Sick Kid's with murder of the babies. Not sufficient evidence to go to trial. Her life
destroyed by media for 5 years, her father died of heart attack
* crown not completely immune to civil prosecution - The Charter.
Ratio: absolute immunity is not justified in the interests of public policy
equality under the law
involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve
limited to wrongful initiation of penal matters (exception: bankruptcy)
misuse of civil proceedings for some collateral purpose
P must prove extrinsic purpose; P must show damages
D must be the driving force in the initiation or prosecution of the action (e.g. the laying of a criminal charge;

lying to police; wrongfully pressuring police to lay charges)

Abuse of Process v. Malicious Prosecution
Abuse of Process - Common Law tort action
in malicious prosecution the action is based on groundless belief. Abusive process has a valid claim but using
for an extrinsic purpose and undertook a specific act in furtherance of the claim for that external purpose.
civil action for illicit purposes
only exists in B.C. Alberta, and Ont.
P. must prove damages and D. did for external purpose

VII Intentional Infliction of Nervous Shock:

involves apprehension created in the mind of P - (like assault) but with physical or psychological consequences
Must be wilful
Must be calculated to cause harm to P
There must be harm
Indirect infliction

Wilkinson v. Downton 1897 Q.B.Wilkinson lies and says her husband smashed up. She goes into nervous shock
not battery because no direct contact
if the defendant did an act calculated to cause physical injury, and physical harm ensues, you have then
committed an indirect battery, in this case nervous shock.
the courts equated emotional injury with physical injury. Canadian courts require actual physical harm or
illness or serious psychological illness
intent will be imputed when forseeable that nervous shock could result if conduct not explained (here, Bielitsky
v. Obadiak 1922Sask CA. - D. started rumour son hung himself - N.S. , Purdy v.Woznesky 1937 Sask C.A. - D.
should have forseen punching husband in head would cause wife N.S.)
This case also has the tort of deceit. P could recover train fare. Deceit is a misrepresentation intended to be
acted upon the detriment of P; P can suffer from losses when she acted on the misrepresentation
Radovkis v. Tomm Man. Q.B.Ps baby was raped. Brought action against D for nervous shock. no provable illness, case dismissed. There must
be visible or provable illness. Fear does not count because it cannot be assessed.
Samms v. Eccles 1961 Utah S.C.D Persistently annoyed P with indecent proposals. She suffered great fear and anziety. No battery, illness, or harm
recognized intentional infliction of emotional harm
Elements:
1) must intend to cause emotional distress that a reasonable person would realise.
2) behaviour which is objectively outrageous, intolerable and offensive to the reasonable sense of morality
3) must cause severe emotional distress
* Canadian Courts are relaxing requirement of physical harm, but still more narrow than the States.

Innominate Torts- there are other ways to inflict indirect physical harm with intent - eg. intentionally poison my
food, you eat, removing essential medicine, intentionally infecting with a disease, setting a trap in someone's path.
- this is needed to add flexibility to intentional torts where there is intentional wrongful behavior that is not covered
by an existing tort.

VIII - Protection of Privacy

No tort for invasion of privacy. Privacy is protected in a piecemeal fashion through various actions and statutes.
Privacy interferes with other rights, freedom of association, speech, and movement (eg. privacy v. newspaper story).

Privacy has lost meaning as a concept

Invasion of privacy does not fit into nuisance the unlawful interference with the use and enjoyment of land.

Motherwell v. Motherwell 1976 Alta. C.A.

did not recognize common law tort action of privacy
the existing bin of NUISANCE was expanded to include persistent phone calls = PRIVATE NUISANCE BY
TELEPHONE
interfered with Ps right to the enjoyment of personal property; thus, it fit into the category of nuisance
kind of made a new tort by fitting it into the existing category of nuisance
repeated mail of a threatening nature not a nuisance because it is not disruptive in the same way.
In this situation, there is no way to know if the phone call is important.
Canadian Courts recognize:
1) Appropriation of Personality - Krouse v. Chrysler Canada Ont. CA1973 - an intentional economic tort so far.
2) harassment - eg. verbal threatening conduct, or following you in public places, that falls short of assault
- not nuisance, not involve enjoyment of your property
- some courts may find this to be an invasion of privacy.

Where there is a hint or suggestion of physical threat or significantly emotional threat this may lead to a tort action for invasion of privacy
in Canada - courts are moving towards this but there is no tort action for harassment in Canada.

What if just being followed or watched? - don't know.

nasty threatening mail? - probably harassment if there is a lot and it is offensive.

Unwanted or inappropriate Media attention for public disclosure of private information of a highly sensitive nature - this has been
recognized as an invasion of privacy in certain circumstances.

sticking cameras in your face and following you is not a tort

Saccone v. Orr - the law is wrong (Motherwell didn't make a tort for invasion of privacy).
phone taped, then played in public
unless there is a demand and an assurance of confidentiality, the conversation should be able to be used.
Malone v. Metropolitan Police 1979 C.A. - no right of privacy against a police wiretap.

Confidentiality Requirements:
1) by statute - none in Ontario
2) by regulated professional ethical code eg. doctor - patient
3) if you implicitly or explicitly promise it
4) if it is an inherent part of the relationship
begins at the point that there is an expectation for confidentiality.

Confidentiality - I will not willingly disclose information obtained in confidence - it does not mean absolute silence
confidentiality expanded from fiduciary duties to protect trade secrets
an intentional economic tort
3 Elements of a Common Law Tort of Breach of Confidentiality
1) information given with the expectation of confidentiality
2) the information was confidential
3) the defendant misused the information for their benefit-

what about non- economic consequences?

Argyll v. Argyll 1967 CH.D.
disclosure by a spouse during marriage may be actionable.
Harder v. Brown 1989 BC SC
sexually assaulted a young child and took pictures
- court ordered give back the pictures
Milton v. Savinkoff 1993 CCLTtook pictures of lady naked.she left them in his jacket.court would not order pictures returned.
(d) Statutory Protection of Privacy
Charter analysis:
a) (s.32) - Does the Charter apply? Even if the Charter creates a protection of Privacy, it will not apply to individual relations of private
citizens.
b) s.33 - has the override provision of the Charter been invoked?
c) - has the plaintiff proved a constitutional right is violated(s.7-15)?

- concept of privacy is a part of many rights and freedoms in the Charter, though not existing by itself.
d) if s.1 can be proven, there is no Charter remedy if Charter rights (s.7-15) are violated.
e) s.24(1)- Remedy if a-c & d not justified - can get any remedy judge deems appropriate under the circumstances (eg. monetary for
violation of privacy rights).
- s.24(2) - Judge must exclude evidence taken against the Charter that would bring the administration of justice into disrepute.
f) s.52 - if a law is inconsistent with a charter right, that law will be struck down and rendered of no force or effect to the extent that it
interferes with the right.so while there may be no tort defence of invasion of privacy, there may be a violation of Charter rights.3 Provinces have Statutory Protections of Privacy, replacing the Common Law. - none in Ontario.

10. The Common Law Tort of Discrimination

Bhadauria v. Bd. of Gov. of Seneca College SCC 1981
woman feels discriminated against for not being hired by Seneca.
claims she suffered mental distress, frustration, loss of dignity, and loss of self-esteem
existence of the Human Rights Code precluded the existence of any common law action - no common law tort
of discrimination in Canada. if there is a legislative remedial scheme for the wrong, the court

cannot create a corresponding common law tort

Debate
Wilson: judgement for P; the HRC did not create the wrong, and thus should not exclusively govern the wrong;
NATURAL LAW: everyone is equal under the law
Laskin: PRINCIPLED CONSERVATISM: the judge should defer to the legislature; only legislature can change the
laws (positivist); there are already procedures for a remedy
but a statute will only preclude this if it is explicitly stated that no common law action should follow from the
legislation. (Solomon thinks Laskin wrong, but agrees that no common law tort should exist)- flawed doctrinal
grounds.
HARRISON v. CARSWELL (1976)
R charged with trespass picketing a Shopping Centre
Dickson: only legislature can change laws PRINCIPLED CONSERVATISM
Laskin: characterizes facts differently: private vs. public debate
social issues: unions and the right to picket; labour relations

CH 4 - INTENTIONAL INTERFERENCE W/ CHATTELS

TRESPASS TO CHATTELS
is derived from the writ of trespass vi et armis
defined as the direct and intentional interference with a chattel in the possession of another
Eng - actionable per se without proof of actual damage or dispossession - e.g.)"look my book"
USA - not actionable per se - need to establish damage or dispossession
Trespass protects poss'n. In order to bring a trespass action, P must establish he was in poss'n at the time the
trespass was committed. Thus, owners out of possessioncannot bring trespass actions, although they may have a
claim in conversion. There are some limited exceptions to the possessionrequirement for trustees, personal
representatives, and for owners whose chattels are in possessionof an agent, servant or bailee at will. The exact
scope of this exception is controversial. (servant is extension of you - trespass protects possessor not owner)
Damages:
General return to status quo ante
If dispossessed, P is entitled to damages for the loss of the use of the chattel. (if car stolen then rental=damages)
In cases of physical damage, P is entitled to the cost of repair or the cost of replacement, depending upon which
is more reasonable in the circumstances. (if cost more to rebuild car, will be given replacement cost)
If the chattel is destroyed, P is generally entitled to the market value at the date of destruction. However, P may

be awarded the replacement cost even if it exceeds the market value, if P can establish that the chattel was
replaced or efforts were made to do so with reasonable dispatch.
e.g.) paintings
FOULDES v. WILLOUGHBY (1841)
shows the difference between trespass to chattel and conversion
D had possession of boat that was carrying P and his horses
D wanted P off the boat for misbehaviour
D took horses from P and put them on shore hoping P would follow
horses ran to a hotel run by Ds brother he refused to give them up until P paid for their keep
P brought action of conversion
Ratio: in order to constitute a conversion, it is necessary that the party taking the good should intend some use to be
made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or
consumed to the prejudice of the lawful owner
CONVERSION - derived from trespass on the case sur trouver
e.g.) find sheep & convert to sweater & chops
intentional tort - e.g.) If I'm drunk and run over your dog, you may bring a negligence suit, not conversion. (must
intend to bring about consequence inconsistent to another's right to it
may be defined as the intentional exercise of control or dominion over a chattel which is inconsistent with
another's title to, or right to possess, the chattel.
does not necessarily involve any moral blameworthiness
intentionally do act that is inconsistent w/ another's right (don't have to know - get into car thinking its yours)
Tort can be committed either directly or indirectly, but requires some positive act.
It can be committed by destruction, alteration, assertion of ownership, denial of P's ownership, wrongful
transfer, wrongful use, dispossession, and wrongful detention. Basically, the issue is whether the D's intentional
act was inconsistent w/ another's right to possess the chattel.
Some authors define conversion narrowly, restricting it to serious wrongdoing. e.g.) Fleming defines conversion
as "an intentional exercise to control over a chattel that so seriously interferes w/ the right of another to control
it that the intermeddler may justly be required to pay its full value." The classic def'n has no such limitation.
Therefore if you are going to act as owner, we will treat you as owner & you will owe full mkt value
P must have had possession or an immediate right to possession at the time the conversion was committed in
order to bring an action. Thus, both a bailee & bailer at will can bring a conversion action. An owner out of
possession with no immediate right to possession cannot bring a conversion action.e.g.) I lease a car for 5 yrs, car stolen, you have conversion, I don't
e.g.) mail letter and its stolen - 2 conversion - bailee & bailer
MACKENZIE v. SCOTIA LUMBER CO. (1913)
raft drifted away; D thought it was his and took it

upon realizing his error, D returned the raft to P P sued in conversion for the time that D had possession
Ratio: technically, this is a CONVERSION, because D (his servants who were acting for him) intended to
appropriate the raft, intended to exercise dominion of it
this interfered with Ps immediate right to possession
P was awarded compensation for the time that the raft was gone, but not the value of the raft because it was
returned
*** cannot get NOMINAL DAMAGES in conversion, only in trespass ***

Damages - A court has discretion to award:

(a) the full mkt value of the chattel at time of the conversion and consequential economic loss if the value of chattel
increased from the date of the conversion to trial. P is only entitled to consequential economic loss if the increase in

the value was not due to D's efforts and P acted reasonably in mitigating his or her loss. - if increase of value of
chattel was due to D, you will not be able to collect it - e.g.) restore car
OR
(b) the court has limited discretion to permit the return of the chattel and damages for its loss of use.
- could award value at Jan. when converted but value increases in May. Can award you this.
- crts careful to make sure this isn't exploited
award full mkt value at time of conversion ( you act like owner - we'll treat you like one)
*** differences b/t trespass & conversion: damage goods=trespass; destroy goods=conversion. To move goods
without asserting any dominion over them is trespass; to alter their position to use them for oneself indicates an
assertion of rights thus conversion; to deny P access to his goods while recognizing that they are his is trespass.
You are responsible for all damages that flow directly from your tort
Only direct consequences ---> use remoteness test

Chapter 5 - Intentional Interference With Real Property

1) TRESPASS TO LAND

direct and intentional physical intrusion onto the land in the possession of another--every invasion of privacy,
even minute = trespass
entering onto another's land without lawful justification, placing, throwing material object thereon, failing to
leave after license has terminated, bringing object on land and not removing it
P must be in possession of land at time of intrusion
the thing trespassing must be visible to the eye

EJECTMENT - not a tort action, but a propriety action for the recovery of land
ejectment does not depend on Ps possession of, or entry onto, land
absentee owner can bring this action
it is an action to restore possession of property to the person entitled to it to get rid of a person on your
property
P may succeed in ejectment where he has a better right to possess than D
D may raise the defence of jus tertii
TRESPASS BY RELATION - an exception to the possession requirement
permits P, who only had immediate right to possession when the trespass occurred, to sue in trespass for that
intrusion once he subsequently acquires possession
legal fiction: deems that P was always in possession! -backdates the possessory right
this is most frequently invoked in cases involving vacant land
Entick v. Carrington(1765 CP)
D entered Ps house and took papers claiming he had a warrant. P sued in trespass.
if trespass exists, D has to justify it by means of statutes or the principles of common law.
once found on someone's land, you have burden of proof as to why you were there - no one has the right to
enter land without a clear and express authority.
any invasion of private property is a trespass, even if the actual damage is nothing
D must answer for his bruising the grass and even treading on the soil!
property right is preserved and sacred
Damages:
1) don't need to prove loss - just trespass

2) punitive damages available - when D trespasses in a highhanded or arrogant manner - eg. Horseshoe Bay
$100,000 for cutting trees to enhance the lot they were developing
Turner v. Thorne 1960 Ont. H.C.
D was the unlucky delivery boy! he had delivered here before; knocked & no answer; delivered goods into
garage; later, P fell over cartons and sustained serious injury
Ratio: trespass to land is direct intentional intrusion onto land in possession of another; once it is established that he
is a TRESPASSER, he is liable for all direct consequences of the trespass, regardless of whether they are
foreseeable (use the remoteness test)
also, trespass may be committed by the continued presence on the land of chattel which the actor has tortiously
placed thereon, whether or not the actor has the ability to remove it
the fact that a trespass results from an innocent mistake or motive, doesn't relieve the trespasser of liability for
any of the results thereof.
the trespasser is liable not only for personal injuries resulting directly & proximately from the trespass but also
for those which are indirect and consequential
Harrison v. Carswell (1976 SCC)
picketed on shopping mall property of P without permission - guilty under Petty Trespasses Act - no right to
do this existed at the time - any such right is accorded by statute (enacted in Manitoba after this).
Harrison - has right to exclude anyone from his private property (Laskin said that D had right to picket but
this bad law)
Charter s.2 Freedom of expression, but doesn't mean can enter my living room - indiv. fundamental rights
override freedom of expression
* by virtue of s. 32 - Charter does not apply to private persons for common law tort actions.
- if there is legislation on the issue that infringes Charter rights, it will be struck down to the extent of the
inconsistency.
~Wilcox v. Police 1994 H.C. - anti- abortionists convicted of tresspass after asked to leave hospital - convicted
despite D's honest beliefs

TRESPASS & NUISANCE

Private nuisance = substantial and unreasonable interference with the use & enjoyment of land in possession of
another.
P must establish harm (DAMAGES) (unlike trespass, where damages not needed - Entick). It is not actionable
per se.
test is OBJECTIVE
there will be liability despite lack of intent or negligence
includes things visible and invisible to the eye
smell and sound must be substantial in DEGREE and DURATION
courts almost always grant injunction for trespass, but much more reluctant in nuisance.

Differences between trespass and nuisance

trespass is absolute, nuisance is a balance

trespass protects possession; direct, physical invasion
nuisance protects the QUALITY of possession indirect or intangible; usually has to be repetitive.
nuisance concerned with the effect of D's conduct on P's use and enjoyment of land, the nature of the conduct is
not important. eg. looks at impact on P, not actions of D
eg. loud noise industrial park not = nuisance b/c not unreasonable effect (but in suburb?)
because not intentional tort - P. must prove harm (damages) in nuisance (not actionable per se) (loss, damage,
injury)

Kerr v. Revelstoke Bldg(1976 Alta SC)

nuisance in that smoke, ash, noise was serious enough that it seriously interfered w/ use and enjoyment of
property (motel) - the physical intrusion of fly ash and sawdust was also a trespass.
offensive noise was a nuisance not a trespass (sound is not visible)
objective test (offensive and inconvenient to a reasonable person)
the unreasonableness is assessed in terms of P's use of his property and the relative interests of P and D
ALLOCATIVE EFFICIENCY
allocate everything in society to its best use
want to reach PARETO OPTIMUM - efficient allocation is reached when another trade would make people
worse off
COASE THEOREM
if you assume zero transaction costs, it does not matter what the court does: the parties will bargain to the most
efficient outcome
Assume mill is most efficient use of land:
1.

2.

3.

Motel wins -INJUNCTION

mill will offer $ for motel to move (motel will gain $, mill will stay)
motel will get lots of money
risk: motel might want to stay no matter how much $ they are offered (e.g. emotional attachment)
Motel wins - make mill COMPENSATE
motel will move and will get compensatory damages
thus, motel breaks even
Motel loses - DISMISS the complaint
no bargaining
mill will get nothing

in all cases the land will still be used most efficiently - the mill will stay
SPUR INDUSTRIES v. DEL WEBB DEVELOPERS (1976)
A operated cattle feedlot; R could not sell lots for city b/c of smells generated from As business
A was there first and engaged in lawful activity, but he is still being moved b/c of public interest
court determines best use of land and tries to give damages accordingly- R granted injunction

~Mann v. Saulnier 1959 NB CA - snow and frost cause D's fence to lean onto P's land not = trespass b/c indirect (if D kicked fence=trespass), no
nuisance b/c no special damages proven. Also was not a reasonable interference.
~Martin v. Reynolds 1959 Oregon SC - D held liable in trespass for invisible physical invasion of property (fluoride particles settling on grass =
unfit for cattle) - microscopic intrusion, Solomon likes.
- Canadian Courts have not followed
~Woolerton v. Richard Costain 1970 CH.D. - D's company swung crane over P's land causing no damage and little interference with the use and
enjoyment of the land - judge granted injunction but suspended till job done - decision seriously questioned.

3) TRESPASS TO AIRSPACE & SUBSOIL

D liable for intentionally and directly entering airspace directly over P's land
eg. bullets, crane, sign over land (Kelson v. Imperial Tobacco 1957 QB -only 8 inches over the property) =
trespass

Overflights
Atlantic Aviation v. N.S. Light and Power (1965 NSSC)
Air school filed an action for trespass to airspace (hydro wires interfering with take-offs)

Problem airspace is over someone elses land

Cannot claim trespass over someone elses land
all overflights = trespass, but subject to right of reasonable passage if for a legitimate purpose and does not
unreasonably interfere with right of land.
Court ruled aviators have no common law right to prevent land owners from erecting buildings or transmission
wires that might impede flights

What about PUBLIC NUISANCE?

substantial and unreasonable interference with the use and enjoyment of land in another persons possession
Problem: who owned the lake?

Private action for public nuisance: interference with a right or interest belonging to the public
Who can bring this action? Only those who have suffered special damage; different in kind but not in degree
Ps action was dismissed b/c use of land by power company was reasonable
Bernstein v. Skyviews (1978 QB)
D took pictures from plane of P's property.
case dismissed
rights of owner to the airspace above his land is restricted to such a height as necessary for the ordinary
enjoyment and use of his land and structures. - beyond that height - no rights (also not a trespass to take a
picture)
problem is balancing rights of owner v. general public to take advantage of what science offers
if through zone of effective use - may be trespass
Canadian courts have been seeming to follow Bernstein
it has been suggested that temporary intrusions like cranes should be treated as nuisance to resolve conflicts but do landowners have any obligation to accommodate their neighbours?
Issues
Why didnt P sue in nuisance? B/c he would have trouble showing damages; also, one flyover is not substantial
in degree and duration
also, there is no tort for the invasion of privacy per se

TRESPASS TO SUBSOIL:

any subterranean invasion, even temporary, is a trespass to land

Austin v. Rescon Construction 1989 BC CA - D held liable for inserting steel rods beneath P's land. The rods
caused no damage or interference with P's use of the property aside from temporary vibrations. $30,000
punitive damages awarded - landowners may deny entry for any reason they choose and have no obligation to
accommodate a contractor or anyone else wishing to enter.
Boehringer v. Montalto 1931 NYS - existence of sewer 150 ft below not a trespass - landowners title extends
only to depth he can reasonably use.
someone can't use your land for their benefit without permission

CH 6 - THE DEFENCE OF CONSENT

1) AN INTRODUCTION TO THE DEFENCES
common law & statutes recognize a number of defences for D's conduct:
i) CONSENT (ch #6)
ii) Defence related to PROTECTION OF PERSON/PROPERTY
iii) Defence arising from ASSERTION OF LEGAL AUTHORITY

2) METHODOLOGY FOR ESTABLISHING CONSENT

(P) must establish a tort has been committed
1)ID the tort
2)consent is a defence for the D (burden of proof on D - balance of probability)
Did P consent to the act IMPLICITLY (based on inferences drawn from the circumstances) or EXPLICITLY?
- includes consent to risks normally associated with that act
Has consent been exceeded?
Was valid consent given to the act, which gave rise to the tort?
3) Defences aren't automatically exclusive-- may use more than one

2) GENERAL PRINCIPLES OF CONSENT

indicate whether the consent was implied or explicit
the D must raise and prove beyond reasonable doubt the defence of consent, it's not just taken into account.
Consent to an act extends to the normal risks inherent in that act
P doesn't have to prove that he didn't consent, the D has to prove that the P consented on the balance of
probablilities
SUBJECTIVE (what D thought) with OBJECTIVE elements (what the reasonable person would think helps to
determine what D thought)
purpose of the law of consent is to protect the concept of autonomy of the individual--you can consent to both
smart and stupid acts
consent is not failure to resist - it is a positive acceptance.
consent must be given voluntarily (product of a conscious mind)

a) IMPLIED CONSENT - knowing the rules of the game and accepting reasonable risk
Wright v. McLean (1956 BCSC)
boys in mud-fight. D hit P with rock, thought it was mud
kid sued on tort of battery
kid consented to "normal risk" of throwing mud; In sport where there is an absence of malice, ill will and
anger combatants consent to the ordinary risks of the sport in which they are engaged
if D were motivated by spite/anger, or threw stone purposely - would be liable
Elliot and Elliot v. Amphitheatre Ltd. (1934 Man KB)
D absolved of liability for injuries when puck went into stands
an amateur hockey player, Elliot aware of the protections provided
spectators implicitly consent to injuries incidental to being at sporting events if aware of the risks and
protections normally provided.
e.g.) visitor from New Zealand never seen a game, wasn't aware of risk; didn't consent

if consent is a defence - must be pleaded and established by the D

b) EXCEEDING CONSENT
Agar v. Canning (1965 Man QB)
D comes out of corner w/ puck and hit in back of neck by P
D retaliates w/ hand across nose
P loses sight in one eye + breathing problems
was not an ACCIDENTAL, UNINTENTIONAL injury inflicted in the normal course of playing a game. It
was deliberate at time when the parties were not involved in the game (EXCEEDING CONSENT) - battery
reduced damages by 1/3 b/c of "great provocation" - however injuries from a resolve to cause serious injury
even when there is provocation and in the heat of the game should not fall within the scope of implied

consent.
c) COMPETENCY TO CONSENT
individual must be competent
must be able to understand nature & consequences of the act.
Factors include age, physical or mental illness, intoxication and other incapacitating circumstances
low threshold test to safeguard autonomy of the individual.
* some statutes may deem individuals in certain circumstances incapable of giving valid consent eg. no consent
under 14 to sexual assault.
FACTORS WHICH VITIATE (INVALIDATE) CONSENT
once you've established P has consented and consent hasn't been exceeded you look at these--if no valid
consent-- don't look
P may raise factors that would negate the otherwise valid consent
narrowly defined
a) DURESS (coercion/compulsion) any conduct which overpowers the will and coerces or constrains the
performance of an act which would otherwise not been performed.
Latter v. Braddel 1880 C.P.
P accused of being pregnant; expressly did not want to undergo examination, but feared for her job
Did she consent to pregnancy test?
did not consent b/c duress - thought she'd lose job, prostitution, cried. Involuntary consent does not equal
consent.
did not address if she consented to the medical exam, don't need to show resistance - a classic mistake.
Court adopted the Criminal Code definition of duress "the threat of immediate physical harm" (unless you let
me do X, I'll hit you with 2X4)
Evidence of a threat in the result of non compliance constitutes duress
s.17 Crim. Code-- "compulsion" defined narrowly in terms of credible threat of immediate death/bodily injury should be more broadly defined - Where do you draw line at threats
b/c to negate consent must be threat of immediate injury
have problem defining what kind of threat influence consent--e.g.) how immediate? what if threat on my kid?

b) FRAUD (Deceit) - involves moral blameworthiness (mind set)

1) P's consent must be based on a fraudulently induced belief, and
2) D was aware of, or responsible for, the P's misapprehension, and
3) the fraud related to the tortious act itself.
Fraud includes situations in which the D knowingly deceives the P or is indifferent or careless about the truth of
his statements.
e.g.) marriage counselor says he will save your marriage - fraud
e.g.) drug addict says he doesn't have HIV - doesn't know but "acting in total disregard of the truth" = fraud
for fraud to negate consent must go to nature of the act as opposed to some collateral matter
e.g.) a man who lied about his marital status to induce a woman to have sex -not liable in battery (fraud to a
collateral matter)
R. v. Williams (1923 CA)
singing teacher induced 16 yr old to sex under pretence of "therapeutic procedure" to improve her voice
girl did not know she was engaging in sex - fraud to an essential nature of the act -rape
Papadimitropoulus v. R. (1945 Aust HC)
accused acquitted of rape w/ illiterate woman after fraudulently convincing her they were married
fraud went to collateral matter - she knew she was having sex; the fraud was the fact that she thought she
was married. Therefore, she consented.
Problems: What did she consent to? Sex or marital sex? Wrong decision by court.

What if there is fraud, not to the nature of the act, but to harmful consequences
i.e.) STDs - Hagarty v. Shine (1878 CA) - woman had sex w/ man and got STD - fraud went to collateral matter having sex (old decision, more concerned with morality) - deceit as to harmful
consequences of an act will now generally vitiate consent.
courts still say that fraud w/ regard to sexual status won't negate consent in criminal law eg. R. v. Senyonga court said fraud to harmful consequences did not negate consent criminally - may be argued it should in tort.

c) MISTAKE - looks only at knowledge of D

The fact that the P gave consent under a mistaken belief will not invalidate the consent unless the D was
responsible for creating the P's misapprehension.
e.g.) marriage counselor says he will save your marriage b/c he is stupid; THEREFORE: mistake.
if mistaken belief on collateral matter than no defence, it must go to the nature of the act
USA rule is broader - if D mistakenly believes P has consented, but she hasn't consented to that act giving
rise to the tort claim...the defence of consent will fail.

d) PUBLIC POLICY

negates what would otherwise have been a valid consent - e.g.) contractor gets you to agree not to use a hard hat
& injured

Different kinds:
1) FAIRNESS - Lane v. Halloway (1968 CA) - older man beat up by young thug, even though old man throws first
punch; - consent invalid b/c not obviously not a fair fight. Consent will be a defence in a fight where it is
obvious that P was no match for D.
2) R. v. Jobidon (1991, SCC) - a fair fist fight where consent defence not allowed - consent limited to cases where
bodily harm is neither intended nor caused (in criminal law - defense of consent could apply in civil)
3) D CONSENTS, BUT PRE-EXISTING LEGAL OBLIGATION ON D TOPROTECT P pre-existing fiduciary relationship of "trust" M.(M.) v. K.(K.) (1989 BCCA) - stepfather has sex w/ stepdaughter, even though she initiated - dad can't raise
issue of consent
Norberg v. Wynrib (1990 BCCA)
Doctor supplies drugs for sex;
court said she didn't give a meaningful consent, but really the existing consent was vitiated by a breach of
trust between physician and patient (fiduciary relationship) Power imbalance
explotiation
breach of FIDUCIARY DUTY you cannot consent to breaching a fiduciary duty b/c that is a fundamental
breach
1. fiduciary has scope for discretion of exercise of power
2. fiduciary can exercise power unilaterally
3. beneficiary is particularly vulnerable to that exercise of power
Majority: consent is negated because of power imbalance
Minority: consent is impossible because of fiduciary duty
4) CONSENT TO CRIMINAL OR IMMORAL ACTS
no civil action can arise from immoral act - e.g.) rob bank - can't sue for your share
Hegarty v. Shine (1878 IRCA)
D's failure to disclose VD did not vitiate P's consent to intercourse b/c P consented to an immoral act - disease
status was collateral matter
EX TURPI CAUSA - from an evil or base act, no civil action can arise
D can raise where he proves P participated in illegal/evil act & directly injured as result
narrow limits of defence:

1) P DIRECTLY injured as result - e.g.) steal car & U hit lamp

2) limited to CRIMINAL ACTS, immoral acts do not apply (some courts)
3) violations of Crim Code; THEREFORE: no provincial violations (some courts)
4) can only be raised by a CO-PARTICIPANT in crime - e.g.) partner drops gun & you get hit = OK - but if hit
security guard = NOT (dumb rule)
5) not used in situations of EXCESSIVE FORCE (some courts)
6) doesn't apply to certain types of criminal activity (some courts)
e.g.) Drinking and driving offences
7) a separate defence from consent, can be raised separately or together
used to prevent profiting from crime
used for P physically injured and suing D for actual injuries (compensation)
Hall v. Hebert (1991 BC CA) - court allowed "ex turpi" to deny recovery regardless of D's act (D allowed drunk
person to drive his suped-up car) - a narrowing of the definition
EX TURPI CAUSA - purpose to protect the integrity of the legal system; THEREFORE can only be raised
in cases where necessary to protect integrity--both criminal and immoral acts can apply
eg. illegal conspiracy - you refuse to give me my share; ex turpi causa can be raised.
eg. if thief breaks into my house and falls on a broken stair, the thief can collect.
When can ex turpi causa be applied?
*** the defence can only be applied to prevent P from profiting from her illegal conduct, or where the claimed
compensation would amount to an evasion of a criminal sanction***

the general principle is to PROTECT THE INTEGRITY OF THE LEGAL SYSTEM

this does not mean that criminals cannot recover damages
thus, in this case, P could recover (his damages can be reduced, but they cannot be denied)

Norberg v. Wynrib (1990 BC CA)

drug addict - Dr. says "sex for drugs"
SCC says she didn't give valid consent b/c "ex turpi causa" (Sol. disagrees b/c she knew she was having sex
& was getting drugs) but Dr. had fiduciary relationship; THEREFORE: can't raise consent

5) CONSENT TO TREATMENT

health care professional must obtain voluntary (product of conscious mind)consent from P to initiate any
procedure, counseling, or examination - as general rule--not limited to medical personnel
Consent must be given by the person who is competent to be giving valid consent
consent should be taken in advance and cover the specific treatment and its risks as well as any reporting or
disclosure of information.
LOW THRESHOLD TEST: is person capable of understanding & appreciating the nature of the treatment and
risks?
If yes, person is competent and next of kin irrelevant no matter what the age of the person - mere act of
contacting next of kin could violate patient confidentiality.
if no, next of kin can substitute consent or denial of consent on behalf of patient
may consent implicitly (fact they're there for treatment) or explicitly
burden of proof on Dr. to show consent
must be based on full/frank disclosure of risks
used in absence of statute
must be voluntary to = valid
clients can consent w/ limits but Dr. has right to refuse - can't ignore patient's refusal to consent.
common law principles don't apply in Ontario - Health Care Consent Act
Problems: 1) only covers regulated health professionals

2) only applies to treatment (personal care not covered, nor is any examination to
determine condition or things that pose little or no risk)

b) EXCEPTIONS TO THE GENERAL PRINCIPLE

unforeseen medical emergency

where impossible to get consent, a health care professional is allowed to operate without consent to preserve the
patient's health/life.
next of kin may be consulted but their consent is irrelevant.
narrowly defined
not allowed to operate if consent has been refused in advance

Marshall v. Curry (1933 NS SC)

P sues for $10,000 for lost cancerous testicle in hernia operation
surgeon not liable; was an emergency when can't get consent
Mallette v. Shulman (1987 Ont HC)
Jehovah witness injured in car crash, card found "not to be given blood"
given blood b/c Dr. not sure she was properly informed, applied to present scenario, represented her current
desire
daughter confirmed card
administration of blood = battery - P awarded $20,000 mental distress
Murray v. McMurchy (1949 BC SC)
surgeon tied P's fallopian tubes during c-section b/c tumours
not necessary under the circumstances-- p=$3,000
2) Pre-existing general consent - patients having given general consent to course of therapy, don't need consent for
every following procedure i.e.)inserting IV
3) therapeutic privilege to withhold info has been eliminated
Meyers v. Rogers - Dr. gave radioactive glop and didn't inform about the narrow risk - can't do that anymore in
Ontario
An advance directive not to be resuscitated can be given, but cannot withdraw consent to treatment (eg. want
someone to pull the plug - violation of federal law) - Nancy B. "let nature take its course" - pull the plug
Qubec decision - bad reason.
c) CONSENT FORMS/BURDEN OF PROOF
Health Care pros have burden of proof
signed consent does not = actual consent
consent forms are not iron clad--just evidence of consent, form only as good as the information contained and
the circumstances.
Issue not whether patient signed form but whether they got his consent
Montaron v. Wagner (1988 Alta QB) patient difficulty understanding English; THEREFORE: consent invalid
e.g.) if written in medical terms = invalid
if not given chance to review = invalid
if you are doing touching you must get the consent (eg. may be problems if Dr. operates but nurse gets them to
sign consent form which Dr. does not explain)
d) COMPETENCY TO CONSENT
low threshold - applies to all - all or nothing test
Minors:
C. v. Wren (1968 Alta CA)(Pre-Morgantaler)
16 yr. old given abortion vs. parents b/c she was competent

she had sufficient knowledge to know what she's doing

no fixed age principle for giving consent now exists

Re LKD 1985 (Ont. Prov. Ct.) 12 year old J. Witness refused chemotherapy - court said that's OK. because she was
competent (she was also already terminally ill, but that shouldn't affect the decision, though in real life it may have).
Adults:mere fact you are mentally ill or senile does not affect consent - they can hold you but can't treat without consent
under legislation
P's plea "God's sake stop" during injection not = withdrawal of consent
healthcare can't conduct samples on unwilling/unconscious patients without warrant
eg. must refuse police requests to do so - they need a warrant.
crts held - consents given while sedated & in pain may be invalid e.g.)Tylenol...Solomon doesn't recognize
diminished capacity of young people

Statutory Principles of Competency:

14 yr old F can't give consent for sexual intercourse
must be 16 to donate live regenerative tissue

e) SUBSTITUTE CONSENT (only when P incompetent)

certain patients may be clearly incapable of consenting (kids - mentally ill),so parents/legal guardians or next of
kin can give consent if:
1) act in good faith
2) patient is incompetent to court rt's satisfaction
3) procedure in best interest of patient
Ont. making child "ward" of Children's Aid transfers power of parents, but kid still has overriding power
Eve v. Mrs. E (1986 SCC)
mother tried to use substitute consent to have retarded kid sterilized
Held - not in best interests of Eve (can't have valid sub. consent for nonmedical reasons)
(Sol. says should be able to do this as long as medical consequences minor)
Re B (1987 H.L.)
minor was incapable of motherhood, picks at scabs -court said it would have to lose touch with reality to allow
her to become pregnant.
Re K and Public Trustee (1985 BC CA)
hysterectomy considered therapeutic b/c behavioral problem (phobia to blood, so prevented menstruation)
* distinguished by SCC in Eve because not sterilization for contraceptive purposes.
limits by law:
Crim Code - no one can consent to have death inflicted on them
aiding/abetting on suicide

f) INFORMED CONSENT: battery or negligence?

traditionally, a Dr.s failure to obtain a valid consent was viewed as a basis for a battery action, whether the lack
of consent was due to a failure to disclose the risks of misrepresentation
there's been a move in Cdn and US crts to analyse some cases in terms of negligence--has the Dr. failed to
exercise a reasonable standard of care in advising the patient of the nature of the procedure and its risks?

Reibl v. Hughes (1980-SCC) & Hopp v. Lepp (1980 SCC)

held that once a P is aware of the general nature of the treatment, she can't subsequently bring a battery action
for failure to inform the risks.
superceded by the Ontario Health Care Control Act - need to be informed of the risks.
lately, battery actions are limited to cases of no consent, consent exceeded, or fraudulently gained.
in all other cases - negligence action - limited the scope of healthcare professional liability.

CH 7 - DEFENCES RELATED TO THE PROTECTION OF PERSON &

PROPERTY
1) SELF-DEFENCE

Burden of Proof on D to establish on balance of probability that

1) was about to be battered (don't need to prove danger) and
2) used no more force than was objectively reasonable in the circumstances.
not limited to physical harm (battery), can be socially offensive contact- e.g.)touch woman's breast, not physical
danger, but threat to dignity
In determining whether the force used was excessive, the court should consider the nature of the force used, not
the resulting consequences.
a reasonable mistake of fact will not negate self-defence
D does not have to walk away - e.g.) challenged to fight & can outrun guy - can stay & use S.D. - must establish
on balance of probability that used no more force than necessary
D does not need to wait for P to throw the first blow, the P's reputation for violent behavior can be raised to
justify the D's decision to strike first.
immediacy - defence ends once danger has passed - e.g.) fight & you're lying on ground - instead of going
inside, I kick you not = S.D.
* No right to use force if not in danger eg. insults, danger passed
* Subjective/Objective Test: D's belief in threat is subjective, use of force is objective in a situation as the D
perceives them.

Wackett v. Calder (1965 BC CA)

D fights with w/ P in beer parlor
drunk P used insulting comments at D - started a fight - D knocked P to ground - hit him twice
was evidence P intoxicated, no evidence that he was incapable of fighting
* D can use self-defence even if he could have walked away or used another alternative.
don't have to weigh blows w/ nicety (if you are better puncher)
Mann v. Balaban
burden of proof on D to establish he is in danger and used only reasonable force
in determining if force excessive: consider nature of force used, not resultant injuries - e.g.)
Brown v. Wilson - D picked up Brown, who was a/b to hit him, in a bear- hug
tried to carry him from the bar - D slipped, Brown fell & hit his head -died
use of bear hug was reasonable force
deadly force - allowed to use force that is grievous in S.D., only where you believe your life in danger or
you will suffer grievous bodily harm
Cdn crts won't allow person to use deadly force in S.D. just b/c took place in his home - e.g.) people come
to dinner & ask them to leave, can't use gun (Veinotv. Veinot 1977 NS CA), but you have death threats,
someone B&Es & you shoot them = OK
Lavalle v. R (1990 SCC)
battered woman subject to violence for a long period of time
threatened by hubby that he would kill her that night - she shot him in head as he was leaving
H crt said S.D. OK b/c she believed he was going to kill her
Solomon: "she wasn't in immediate danger--raises issue of immediacy"
* R. v. Whynot (1983 NS CA) - Self Defence not available for battered wife who killed husband while he was
passed out on the couch.

 dif. perceptions for dif people- e.g.) Solomon followed to car v. woman followed to car
* difficult to know the boundaries of how immediate a threat is.

2) DEFENCE OF THIRD PARTIES

identical principles as S.D.

dif. from S.D. - can exercise force in D of 3rd party independent of person being assaulted and whether they had
a right to self defence - e.g.) drug addict being arrested by narc and you intervene - you're not liable
reasonable and bonafide mistake doesn't negate the defence - e.g.) pull gun on friend as joke and both know-3rd party can use the defence of 3rd party -can use as much force as necessary
* Deadly force is only acceptable if reasonably believed the person's life is in danger.
* necessity for intervention and the reasonableness of force are questions to be answered by the trier of fact.
Gambriell v. Caparelli (1974 Ont. Co. Ct)
Facts:
P hit D's son's car
P was choking son so, D hit him w/ garden tool
test - where a person intervening to rescue another holds an honest and reasonable (though maybe mistaken) belief
that the other person is in imminent danger of injury, he is justified in using reasonable force
Held: D believed that her son was in imminent danger & used reasonable force fact D misread intention of P does not negate D
~Cachay v. Nemeth 1972 Sask. QB - P tried to kiss D's wife
D, karate expert, broke P's jaw/teeth
D sought D of 3rd party by helping wife
H force was excessive
provocation was used in consideration of damages
~R. v. Duffy 1967 QB
Defence of 3rd party not limited to relatives or special relationships -can be used by anyone on the scene to
help a stranger.

3) DEFENCE OF DISCIPLINE

authorises force if it is by means of correction

held over from outdated notions - family was one person - crts narrowly defined
in the 1980's (can no longer beat your wife now)
s.43-Crim Code - can use physical means of discipline (teachers, parents) -Cdn: narrowed this - must establish it
is not done out of spite/malice but to serve educational/correctional benefits (can be raised in both Crim. and
Civil cases)
* s.43 should be interpreted by prevailing social customs, not the accused religious beliefs.
teacher - rationale for not permitting an action is to maintain order in school, rather than delegation of parent's
authority - this done by statute(Education Act) - parent can't authorize/prohibit use of force as discipline(b/c
derived from statute, not parent) - broad powers
must be used in circumstances where person getting hit is capable of understanding the reason for discipline
physical force must not be excessive (push & gets concussion -I is whether push unreasonable) - excessive force
is actionable eg. force must be reasonable.
Common Law right of Captain of a ship and pilots to commit/order use of physical force to maintain order
(doesn't need to be for discipline) - pilot is now a peace officer under Crim. Code, and this is now mostly
changed by statute.
* appropriate relationship must be proven eg. hockey coach, babysitter, bus driver

R. v. Dupperon (1984 Sask. CA) - criminal case

Father used belt and hit kid 10x on ass
Held: is excessive & Dad guilty of assault
* if the child suffers injuries which may endanger life, limbs or health, that alone would be sufficient to find the

punishment was excessive.

R. v. J.M.G. - criminal case
principle allowed to investigate any allegation of drug use, by searching student or his locker
Ogg-Moss v. R. - criminal case
- mental health worker got mad and hit mentally retarded in the head with a spoon
person incapable of understanding
can't use s.43 (strictly interpreted)
* use of physical force out of anger or malice is an assault like any other.

4) DEFENCE OF REAL PROPERTY (land/house not cow)(applies to occupier)

Defence depends on the status of the entrant:

1) People who enter by legal right eg. a) contactees (baseball ticket), b)statutory authority(police, fire), c)
easement
2) invitees/licensees - on property with permission (dinner guest)
3) trespasser - enter with permission which is later revoked, or enter with no permission
4) violent intruder - if the person enters violently, can use physical force to stop or eject them ( but not if its a 10
year old kid) - courts moving away from violence to stop them eg.Venot v. Venot - can't shoot brother to make
him leave.
R. v. Haverstock - guy has gun ,says leave or I'll shoot - not guilty of assault, the threat was less violent.

Test: If person is a trespasser

1) request them to leave before using physical force, giving them reasonable time to comply
2) if trespasser refuses, you may escort them from the premises by the most gentle laying on of the hands
3) If they resist you may use physical force to overcome the resistance
NOTE a violent intruder may be ejected with physical force without first requesting that the intruder leave.
Canadian courts do not permit an occupier to use force likely to cause death or serious bodily harm solely for
purpose of ejecting a trespasser who cannot be induced to leave by less violent means.
cannot eject someone in a helpless condition (e.g.-wasted & winter)
eg. Dunn v. Dom. Atlantic Ry. 1922 SCC
- drunk ejected on railway platform in night and he fell asleep on rail - dead

window breaks downstairs, can't shoot intruder to protect property, but can to protect family/self
if you make a reasonable mistake re: level of force, won't negate the defence
not allowed to do indirectly what you are prohibited from doing directly -e.g.) guard dog or mechanical device court analyzes as though you yourself there - you could be vicariously liable
at common law can use physical force against violent trespassing animals eg. dog attacking sheep, not a
wandering cow.
* at common law an occupier was entitled to damage or even destroy the property of another if necessary to
protect his own property and the damage done was reasonable in relationship to the interest protected (eg. to
tear down a burning shack to protect my Richie Rich mansion - but not the other way around).
* sign posted - if they enter you may have 2 Defences: consent & D of Real Property (but the sign won't
increase your authority for the defence of real property). - there's never been a case to see if a sign could serve
the function of notice.
* The right to eject does not equate with the right to imprison (but can detain for police based on the right of
legal authority).
**** Police may have a legal authority and you have a valid defence and you kill each other, both having valid
defences.

MacDonald v. Hees (1974 NSSC)

P knocked on motel door, heard voice and though it meant enter -forcibly ejected
TEST - Can right to use physical force depends on status of entrant if entrant is violent - can use physical force
without first making request to leave (still can't use grievous force)

If trespasser (enters land without consent of occupier - must make request 1st to leave and give opportunity to
do so, then gently lay on hands and then if resists, can use more force to eject (can't wound, beat)
Held : no request to leave; THEREFORE: force excessive - liable

Bird v. Holbrook (1828 CP)

D sets spring gun to protect tulips, P try to retain another's hen -hopped fence and wounded.
* battery was not for purpose of protecting property, it was to maim and catch someone.
fullest notice possible is required - there was no notice here, was kept secret.
THEREFORE: cannot set traps to prevent trespassing without proper warning
5) THE DEFENCE OF CHATTELS:
arises in situations where you are in poss'n and someone is attempting to dispossess you or if you're in hot
pursuit of the chattel
principles of defence of real property apply here to defence of chattels
if person attempting to dispossess not using force - request, if refused use force (not death or grievous bodily
harm)
if A picks up B's book, B must request its return b/f using force. But if A grabbed book from B, B could use
force to prevent dispossession
the specific facts of the case will dictate whether the possessor has privileged to use force & whether the force
was reasonable + must be on balance b/t harm you're causing and the interests you're protecting
except in cases of hot pursuit, an individual can't invoke the defence of chattels once dispossessed of them. He
may seek to regain poss'n by court action or a self-help remedy (eg. recapture)
can't use grievous bodily harm

6) THE DEFENCE OF RECAPTURE OF CHATTEL

when already dispossessed of the chattel - may only be invoked by a person who has an immediate right to
poss'n and then only after a request has been made for the return of the chattel
Rule: force can only be used where a person who wrongfully gained possession refuses to give it back after
requested to do so first
c/l privilege to enter another's land to recapture chattel (if it came onto land accidentally or was left by
wrongdoer. i.e. Frisbee lands in neighbour's yard)
limits on force: e.g.) dog harassing sheep, can shoot if no other means or prizebull walks on land & you
shoot as he walks toward sheep = can't (must be reasonable connection b/t harm caused & interest)
the remedy of recapture places the owner of a chattel in the role of potential aggressor who's attempting to
regain poss'n of the goods from another
+ THEREFORE remedy is narrowly defined
if person comes into poss'n unlawfully, must request, then allowed to use force (limited) - owner could use
forced entry
if something stolen -can only use lawful means to retrieve
e.g.)lease TV from Krazy Kelly's- miss payment - can only use peaceful means
** may enter property peacefully to recapture chattels
* may use forceful entry to regain unlawfully gained property.
* a reasonable and bonafide mistake will not negate the defence of chattels, but it will negate the recapture
of chattels.

6) PUBLIC AND PRIVATE NECESSITY

(a) PUBLIC NECESSITY

individual privileged (protected from civil liability) to intentionally invade the proprietary (property) rights of
another, in order to save lives or otherwise protect the public from some other external threat of nature
must be an emergency, a sense of emergency
the public interest must be greater than the private interest
a genuine mistake of fact will not negate the defence

only allows invasion of proprietary rights (property)

e.g.) - can knock down your house to prevent spread of fire
- life boat sinking - can throw rock collection overboard
(can't throw person over, only proprietary rights)
complete Defence - not liable at all for either technical violation or damages caused

Surocco v. Geary 1853 Cal SC- H - knocking down house necessary b/c would have been consumed if left standing P can't recover for value of goods that they might have saved
must have reasonable belief, if so mistake will not negate the defence
must be reasonable - e.g.) can't tear down Bill Gates mil$ home to save $100shack
saving lives = broad interpretation
saving property = narrow
* no duty to act for the benefit of others
* can use physical force to overcome resistance to my exercise of public or private necessity (should try to
explain first)
doesn't recognize right to invade personal integrity e.g.) "Alive"
R. v. Dudley and Stephens 1884 QB- killed and ate fellow passenger while in lifeboat - guilty murder (pardoned)
1) State used to have a defence of public necessity to take or destroy your property.
2) in war the defence can be used to requisition property, but can't requisition property in case the enemy shows up
there.
Rigby v. Chief Constable of Northamptonshire 1985 QB
police burned down P's shop to capture bad guy
police absolved of liability in trespass b/c public necessity, liable for negligence in c/l for not having fire
fighting equip.
bad decision - should only apply protecting the public from forces of nature.
Entick v. Carrington - right not to be searched unreasonably
re: roads - applies to travellers who are forced to cross adjoining land when public highway blocked--leave
public highway & trespass on neighbouring land(old Defence
homeless - if lightening, have a right to trespass b/c external threat of nature
London Borough of Southward v. Williams 1971 CA - homeless squatters could not invoke D of public necessity b/c
then no one would be safe -reaffirms threat of nature.
c/l principle applies - conduct is privileged - you can't sue a person who tore down your house
admiralty law - if cargo jettisoned out of public necessity, owners of the remaining cargo share the cost equally.
Lapierre v. A-G Que 1985 SCC
5 yr. old girl incapacitated after mandatory immunization
rare effect
1 death per 100,000 v. 200 deaths if no immunization - public interest
*** individual if negligent in causing/contributing to the emergency situation, can't use Defence of public necessity
- e.g.) go out in boat in tornado, crash into expensive dock; THEREFORE: Defence of necessity to save lives not
allowed

(b) PRIVATE NECESSITY

self help remedy

you're intentionally invading the proprietary interests of another to protect your own interests from some
external threat of nature. It is a privilege. You are entitles to take advantage of another persons property, but
you will have to pay for it
situation of pressing urgency allows D to deviate from the law and come onto P's land without his permission as

long as no unnecessary damage done to P's land

partial Defence - operates to privilege the technical tort, but liable for any damages actually caused
e.g.) dock your boat to private dock during storm = private necessity; Have to pay compensatory damages
THEREFORE: trespass is privileged, can't be sued for saving your life, but liable for compensation for damages
to the dock.
* the threat must be immediate
* not self interest e.g.) anchor rods

Why assert?
1) avoid damages for intentional tort
2) authorizes your conduct as lawful, the other party as unlawful.
can't use physical force against pub/priv necessity
e.g.) storm - tie your boat to the dock - dock owner unties boat and it is destroyed - liable for damages to boatif they resist and injure you, they are liable
can use physical force to overcome your resistance e.g.) rock collection & you resist
* cannot use deadly force to protect property.
difficulty - reasonably believe D of 3rd party or S.D.

must be reasonable e.g.) can't tie cheap burning boat to cabin cruiser; THEREFORE:must prove interest being
protected is $ than P's

Vincent v. Lake Erie Transport Co. 1910 Minn. S.C.

D tied boat to P's dock in storm could cause damage to dock
D had no reasonable alternatives. Cannot be kicked off dock because necessity dictated that he be there
D must pay damages for economic loss / damage to dock
* A D may prudently avail himself of the property of P for the purpose of preserving D's own more valuable
property, but the P is entitled to compensation for the injury done.
* Law recognizes defence of necessity but not of duress
6) APPORTIONMENT OF FAULT IN INTENTIONAL TORTS
Negligence Act - where harm is caused by the negligence or fault of the D and the negligence or fault of the P,
then the loss will be apportioned between the two. e.g.) stopped at light - hit from behind, not wearing seat belt,
now entitled to $200,000 minus amount equal to proportionment of loss
Ont.-- interpreting NEGLIGENCE ACT to any case w/ fault or neglect -applies to intentional torts - e.g.) tease
person, hit in nose = %80 b/c contributed to the action (provocation may reduce damages)
e.g.) agree to fight crt may not recognize D of Consent(policy reasons - Jobidon)- may view participation of
person as intentional and as contribution to loss and limit P's claim to recover $
Defence of Contributory Negligence: - can be raised for intentional torts in Ontario to reduce damages.a partial defence to be raised by the D, proving:
1) P failed to act reasonably for his own safety
2) P's Negligence or fault was a cause of the loss or injury.can use this defence after a tort is established
eg. failure to have safe sex?
* the defence is almost never used.